1.
In March 2010, the ACLU ran an advertisement in which President Barack Obama’s face morphs into that of President George W. Bush. A few months later, in a report on the first eighteen months of Obama’s term, the civil liberties group charged that Obama was in danger of establishing a “new normal” by entrenching the “worst Bush-era policies.” According to Daniel Klaidman’s new account of President Obama’s struggles to square national security and the rule of law, Kill or Capture, “no criticism seemed to sting more than when liberals accused him of selling civil liberties down the river.”
But it’s not just liberals who make this charge. Jack Goldsmith, a conservative Harvard law professor who served as a lawyer in the Defense Department and the Justice Department under President Bush, opens his new book, Power and Constraint, by contending that “in perhaps the most remarkable surprise of his presidency, Obama continued almost all of his predecessor’s counterterrorism policies.” Washington Post columnist Charles Krauthammer goes further, accusing Obama of blatant hypocrisy:
You go around the world preening about how America has turned a new moral page by electing a president profoundly offended by George W. Bush’s belligerence and prisoner maltreatment, and now you’re ostentatiously telling the world that you personally play judge, jury, and executioner to unseen combatants of your choosing, and whatever innocents happen to be in their company.
More pithily, Stephen Colbert recently remarked that “rather than sending prisoners to Gitmo, [President Obama] is taking the high road by sending them to their maker.”
As Jo Becker and Scott Shane recently noted in a May 2012 New York Times article reviewing Obama’s national security record, “nothing else in Mr. Obama’s first term has baffled liberal supporters and confounded conservative critics alike as his aggressive counterterrorism record.” One thing is certain: Republican presidential candidate Mitt Romney will not be able to accuse Obama of being soft on security. Obama’s administration not only killed Osama bin Laden, but claims to have killed twenty-two of al-Qaeda’s thirty top leaders. Obama has radically escalated drone strikes, continued military detention without charge and military commissions for trying terrorists, prosecuted more government officials for leaks than all prior presidents combined, maintained the discretion to render suspects to third countries, and opposed efforts to hold US officials accountable for authorizing torture of terror suspects.
How should we assess President Obama’s first term as a national security president from the standpoint of civil liberties and the rule of law? Klaidman and Goldsmith offer very different judgments. Klaidman, a Newsweek reporter, sees a president wracked by indecision, torn between his commitment to legal ideals and his political pragmatism. Goldsmith maintains that President Obama has largely continued his predecessor’s policies, because by the time he took office the system of checks and balances had worked to limit, revise, and legitimate Bush’s policies. Both books offer important insights into the workings of the modern national security state, but in my view, neither gets Obama quite right.
President Obama has in fact decisively broken from the Bush approach. While he has continued to employ tactics traditionally associated with war—military detention, killing, and war crimes trials—he has sought to reconcile those practices with the rule of law that Bush rejected. Where he has fallen short is not in fighting al-Qaeda, but in fighting his critics at home, and in failing to embrace the obligations of transparency and accountability so central to democratic legitimacy. And nowhere is the latter failing more evident than with respect to his aggressive but secretive exercise of the power to target and kill our “enemies.”
2.
In his inaugural address, President Obama firmly rejected “as false the choice between our safety and our ideals.” But as Klaidman illustrates, in a fascinating and detailed account of the administration’s internal battles, there are actually many hard and real choices involved in keeping the country secure from an organization that hides among civilians, targets noncombatants, and has adherents willing to commit suicide to spread mayhem and terror. Based on interviews with more than two hundred sources, most of them current or former Obama administration officials, Klaidman portrays Obama as deeply ambivalent as he presides over repeated debates between those Rahm Emanuel called “Tammany Hall”—the realists represented by himself and David Axelrod in the White House—and those Emanuel disparaged as “Aspen Institute” idealists, such as White House Counsel Greg Craig, Attorney General Eric Holder, and State Department Legal Adviser Harold Koh.
Obama comes across as genuinely prizing American ideals of liberty, due process, and the rule of law, but also wanting to use all available tools within the law—military as well as criminal—to maintain security. Klaidman criticizes Obama for his “Hamlet-like indecision,” saying that it is “one thing to have a ‘team of rivals,’ another to let them fight without any resolution or action.” But his inside accounts of the debates over what to do about Guantánamo detainees, an al-Qaeda suspect captured on the high seas, an American citizen accused of plotting terrorist attacks from Yemen, and the trial of Khalid Sheikh Mohammed actually tell a different story. These were and are all truly difficult dilemmas, fully warranting extended debate, and resisting easy answers. Obama’s willingness to struggle with the ethical and legal issues they present is a sign of strength, not weakness.
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Moreover, Klaidman’s account actually demonstrates that Obama made plenty of decisions about which his advisers disagreed. He overruled the CIA and Emanuel on disclosing the previously secret Office of Legal Counsel memos that had justified torture. He vetoed a military proposal backed by Mike Mullen, the chair of the Joint Chiefs of Staff, for a major strike at a Shabab training camp in Somalia, instead ordering a more surgical and targeted approach. He initially forbade the use in Yemen of so-called “signature strikes,” in which targets are not personally identified but chosen because they fit a profile, although more recently he has reportedly authorized such strikes. He insists on personally signing off on all strikes in Yemen and Somalia, and all strikes in Pakistan where there is any risk that civilians might be harmed. And he backed Holder’s decision to try Khalid Sheikh Mohammed in civilian criminal court, even though Emanuel condemned the move as “a self-inflicted wound.”
Most importantly, where his predecessor sought to thrust the law aside, Obama consistently seeks to reconcile US counterterrorism policy with the rule of law. He does not always succeed in this, but it’s not through indecision. It is, rather, through his unwillingness to take the fight for what he believes in to the American public.
Many of Obama’s problems arose not from pressures created by real or perceived security needs, but from domestic demagoguery by his critics. Consider, for example, the vexed subject of Guantánamo Bay. On his second day in office, Obama vowed to close it within a year, reasoning, as have many before him from both parties, that the human rights abuses inextricably associated with the prison continue to taint our counterterrorism policy while buttressing al-Qaeda’s recruitment. Yet three and a half years later, the prison remains open, holding over 160 men, with no end in sight, either to their detentions or to the facility’s existence.
The primary blame, however, is Congress’s. Playing shortsighted domestic politics, Congress has refused to allow any Guantánamo detainees to be brought to the United States—even those, like a group of Chinese Uighurs, who have been determined to pose no threat, and to have been wrongly detained in the first place. When Representative Frank Wolf of Virginia learned that two Uighurs were to be relocated in his district, he took to the floor of Congress, objecting to the idea of letting terrorists into his backyard—even though the men were not terrorists at all. There seemed little the administration could do; as Klaidman shows, even Democratic Senate leader Harry Reid played the fear card, saying, “we don’t want them around.”
Similarly, the obstacles to trying Khalid Sheikh Mohammed in civilian criminal court were political, not legal. President Obama’s announced policy is that where possible, terrorists should be tried in civilian criminal courts. To that end, Justice Department prosecutors fully investigated KSM’s case, and prepared a four-hundred-page briefing book setting out the case they would make against him. In doing so, Klaidman reports, they discovered a trove of secret recordings of prison yard conversations between KSM and his fellow inmates, in which they freely admitted their roles in the September 11 attacks—evidence the military prosecutors inexplicably had decided not to use. Those admissions, untainted by the torture inflicted on KSM, were so explicit that it made conviction all but certain.
Policy considerations also strongly favored a civilian criminal trial. The federal courts have successfully prosecuted more than two hundred defendants on “terrorism” charges since September 11. While many of those prosecutions involve dubious practices of entrapment and trumped-up charges of “material support,” federal courts have undoubtedly shown that they can handle terrorism cases. Their judges are seasoned, their rules are clear, and their process has the legitimacy earned through years of application to millions of Americans.
The military commissions, by contrast, are subject to continuing change, with few or no precedents to rely upon. Their military lawyers and judges have no experience with serious terrorist trials. And the proceedings lack legitimacy, both because they remain tainted by the lawless form they initially took under President Bush, and because by design they apply only to noncitizens, and not to Americans. Their track record to date has been dominated by false starts, Keystone Cops procedures, and surprisingly light sentences.
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So any rational actor would choose to try KSM in civilian criminal court. That’s precisely what Attorney General Holder did. He’s been widely criticized ever since for failing to prepare the way for the announcement by informing New York officials sufficiently ahead of time, and for failing to defend the announcement forcefully. But Klaidman reveals that the decision to delay informing New York officials was driven by a concern about leaks, and that all relevant officials, including Mayor Michael Bloomberg, supported the decision when it was announced. It was only later, when the New York officials were inundated by the complaints of their constituents, that they reversed course.
Holder, it turns out, wanted to mount a major public relations defense, including appearances on the Sunday talk shows and an Op-Ed for The New York Times. But Emanuel, uncomfortable with the decision, ordered Holder not to do so, and limited him to a single appearance on NewsHour. At the same time, Emanuel called Republican Senator Lindsey Graham, who he knew to be an avid opponent of trying KSM in civilian court—not in order to stave off Graham’s opposition but to stoke it. Graham—a reserve officer in the army’s legal department—and others objected vociferously, and ultimately convinced Congress to forbid the expenditure of any money to try KSM in the United States.
But the blame is not all Congress’s. On Guantánamo, KSM, and other national security issues, the administration has been reluctant to fight back against its critics. In a dramatic moment during the controversy over where to try KSM, President Obama concluded a meeting devoted to the topic by reading aloud from the sentencing transcript of the civilian criminal trial of Richard Reid, al-Qaeda’s would-be “shoe bomber,” sentenced to life imprisonment in 2003. When Reid claimed, “I am at war with your country,” Judge William Young replied:
There is all too much war talk here…. You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature…. So war talk is way out of line in this court….
We all know that the way we treat you, Mr. Reid, is the measure of our own liberties. Make no mistake, though. It is yet true that we will bear any burden, pay any price, to preserve our freedoms. Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done.
When he finished reading, Obama asked, “Why can’t I give that speech?” and left the room. Klaidman never answers the question. It’s obviously easier for a federal judge to make such a speech, as he does not have to stand for reelection. And it’s easier to make such a speech after a terrorist has been convicted in a fair trial and sentenced to life imprisonment than beforehand, when there is always the possibility, however remote in KSM’s case, that the terrorist might go free.
Nonetheless, Obama could give such a speech. In fact, he has already done so. In a May 2009 address at the National Archives, the president insisted, rightly, that in the long run our security rests on fidelity to our constitutional principles: “Time and again, our values have been our best national security asset—in war and peace; in times of ease and in eras of upheaval.” But since that speech, we have had radio silence from the president on the close nexus between security and the rule of law. Perhaps lacking the courage of his convictions, he has been unwilling to take his case to the American people. As a result, he has ceded far too much air and ground to his critics, many of whom have been all too eager to play on fear for political advantage.
3.
In Power and Constraint, Jack Goldsmith attributes Obama’s counterterrorism policy not to indecision but to a national consensus that the status quo he inherited was legitimate. Goldsmith contends that Obama has “continued almost all of his predecessor’s counterterrorism policies,” because by the time he took office, checks and balances had reined in Bush’s worst excesses.
Goldsmith is right that checks and balances, broadly construed to include nongovernmental organizations, the press, foreign pressures, and internal government watchdogs and dissenters, forced Bush to curtail many of his most lawless measures. Goldsmith’s account of how these influences operate to improve accountability in the modern era is perceptive and nuanced. But he abandons that sensitivity to nuance when it comes to his claim that Obama continued Bush’s policies without significant change. For example, he writes that President Obama “sound[ed] very much like George W. Bush” when he said that “my single most important responsibility as President is to keep the American people safe.” But one would be hard-pressed to find a single president in American history who has not said the same thing.
In fact, President Obama has done many things to distinguish his administration’s policies from his predecessor’s. He ended the CIA’s “enhanced interrogation” program, closed the CIA’s secret prisons, and released the previously secret torture memos. He reformed the military commissions, pledged to close Guantánamo, and increased the substantive and procedural standards for detention in Afghanistan. He introduced pro-transparency reforms with respect to Freedom of Information Act requests and declassification reviews, rejected rendition as a means of outsourcing torture, and substituted a more surgical and precise targeting strategy for Bush’s more sweeping “war on terror.” He refused to rely on the “inherent” and unconstrained commander-in-chief authority that Bush infamously invoked, and insists that his authority is limited by statutes, the Constitution, and international law, including the laws of war.
Goldsmith concedes that with respect to legal limits on its power, “the Obama administration seemed to embrace them on its own initiative rather than, as was so often true of its predecessor, under apparent threat of judicial or congressional scrutiny.” But he dismisses this as “prettier wrapping,” when it is in fact the essence of the distinction between Obama and Bush. Bush grudgingly sought authorization from Congress for military commissions only after the Supreme Court declared his unilaterally created commissions unlawful; Obama went to Congress of his own accord in 2009 to make the tribunals more fair (by, for example, prohibiting coerced testimony and restricting hearsay). And when a panel of the US Court of Appeals for the D.C. Circuit ruled that his military detention authority was not limited by the laws of war, President Obama took the extraordinary step of telling the court it had granted him too much power, insisting that his authority to detain is limited by the laws of war. This is not merely “prettier wrapping”; it is the difference between a president who seeks to act within the rule of law and a president who sought to discard it.
It is true that, much to the dismay of many human rights groups, President Obama has continued military detention without charge and military commissions. But these are not “Bush policies”; they both have a well-established place in wartime that extends far back at least to the nation’s founding. Even most human rights and civil liberties organizations acknowledge that an armed conflict exists in Afghanistan with al-Qaeda and the Taliban. Wars routinely involve detention of the enemy without charge, and often involve military trials for war crimes.
There are, to be sure, disputes about the proper scope of the battle and the proper procedures for military commissions. But the main reason that military detention and commissions were controversial was the way Bush implemented them—detaining large numbers of people without any process and on the basis of dubious evidence, subjecting them to brutal and inhuman interrogation practices, and asserting the power to try them in kangaroo courts. Obama has unequivocally repudiated those practices, and has sought instead to conform his counterterrorism policy to law. This is an important and welcome change.
4.
No tactic has been more controversial under President Obama’s tenure than drone strikes. He has not merely continued, but radically expanded, the Bush administration’s use of unmanned missiles to kill suspected leaders and members of al-Qaeda, the Taliban, and “associated forces.” From 2004 to 2008, for example, there were forty-five drone strikes in Pakistan; from 2009 to June 2012, there have been 255. Bush authorized one drone strike in Yemen in eight years; Obama has authorized thirty-eight in three and a half years.
Some, including Charles Krauthammer and John Bellinger, Bush’s State Department legal adviser, have railed at what they see as a double standard, contrasting the harsh criticism leveled at President Bush for approving the waterboarding of a few al-Qaeda suspects with the relatively muted criticism Obama has received for authorizing the killing of hundreds without trial by remote control. But there is a basic difference: torture and cruel treatment of detainees are absolutely prohibited during war and peace alike; indeed, they are war crimes. Killing enemy fighters in wartime is not a crime, but a necessary evil. There is no moral equivalence between what we did to KSM and to Osama bin Laden.
That said, there are many serious questions about Obama’s targeted killing campaign. It is one thing to kill the enemy on the battlefield during an armed conflict, and the border regions of Pakistan where the Taliban and al-Qaeda have holed up almost certainly qualify as the battlefield. And when the enemy hides among the civilian population, but continues to organize and plan attacks, as Osama bin Laden did for years, killing outside the conventional battlefield may be justified where capture is impossible. But it is another matter to kill people who are not clearly part of al-Qaeda or the Taliban, far from any battlefield, in countries with which we are not at war.
The drone, a tool that allows CIA experts to kill someone halfway across the world by pushing a button, without exposing a single US life to danger, raises complex ethical and moral issues that as yet have been barely explored. Drones make warfare deceptively “cheap.” The use of ground troops and conventional bombing missions can be avoided, and we can engage in small-scale military interventions while short-circuiting the limits on warmaking in the Constitution and the UN Charter. For the time being, we have a virtual monopoly on this tactic, but drones have become the focus of the new arms race, and a world in which every nation is as free to execute its “enemies” across borders as we seem to think we are is not in our—or anyone’s—interest.
These questions make it all the more disturbing that the targeted killing program has been largely shrouded in secrecy. The Obama administration refuses to confirm or deny the strikes, even though they are routinely reported on front pages here and abroad, and even when President Obama held a news conference to announce, in the passive voice, that American Anwar al-Awlaki, a leader of al-Qaeda in the Arabian Peninsula, “was killed in Yemen.” Over time, the administration has pursued some measure of transparency by authorizing administration spokespersons to give official speeches about the general outlines of the program, as well as by apparently tolerating leaks to journalists about the process. Ironically, it has been the administration officials that Klaidman identifies as the most sensitive to civil liberties—Harold Koh, Eric Holder, and John Brennan, Obama’s counterterrorism adviser—who have made the speeches defending the practice. Cynics might dismiss this as a sophisticated public relations ploy, but inside accounts suggest that it may also be because these men pressed the hardest for a public accounting.
But even with all the official speeches and barely official leaks, too many questions remain. The administration takes the position that it can kill, either pursuant to the Authorization to Use Military Force, or as an act of self-defense, when: (1) it identifies an individual who is part of al-Qaeda, the Taliban, or associated forces; (2) the individual poses an imminent threat to American interests at home or abroad; and (3) his capture is infeasible. But the administration has reportedly defined “imminent” capaciously, reasoning that because al-Qaeda and its affiliates want to strike us whenever they get the chance, they always pose an imminent threat. On that reading, imminence fails to serve its purpose, which is to ensure that the use of force in self-defense is reserved for the last resort. Absent a truly imminent attack, one can—and should—wait, as even if capture is infeasible now, it may become feasible later. Without real imminence, killing is not truly the last resort.
Moreover, what does it mean for capture to be “infeasible?” US special forces reportedly coordinate with Yemen authorities on strikes and assist them in their own attempts to capture their enemies; why could we not work with them to capture those whom we perceive as threats to us? Killing may be cheaper and easier than capture, but does that justify an execution without trial?
Not all strikes are individually targeted. The administration also uses “signature strikes” to target and kill groups of men who are not personally identified but appear to be hostile militants. While such a strategy might make sense on hot battlefields, where one frequently kills “the enemy” without knowing precisely who they are, it is extremely dangerous when employed beyond battlefields, where it can be very difficult to know with any degree of certainty which groups are engaged in hostile military action. For this reason, Obama initially banned such strikes in Yemen, but news accounts indicate that he has relaxed that ban recently. What criteria are used to distinguish the enemy from those who merely look like the enemy? As President Bush showed us, it’s all too easy to make mistakes in identifying the enemy. A mistakenly detained man can be released, as hundreds held at Guantánamo have been. Mistakes in the drone program are final.
The drone strike program also raises serious strategic and policy questions. Understandably, the people of Pakistan, Yemen, and Somalia deeply resent the fact that the United States flies unarmed missiles over their heads and dispatches their countrymen to their death, apparently at will and without evident checks. As Jo Becker and Scott Shane wrote in The New York Times, “drones have replaced Guantánamo as the recruiting tool of choice for militants.” Former director of national intelligence Dennis Blair argues that drones create so much resentment in Pakistan, for example, that even when they succeed in killing high-level al-Qaeda leaders, they are counterproductive because they build so much sympathy for our adversaries.
Klaidman’s book and a recent account in The New York Times offer glimpses at the process used to pick targets and authorize their inclusion on the “kill list,” but there is still much we do not know. The administration holds secure conference calls every Tuesday, apparently with up to one hundred people on the phone, to debate whether to include an individual on the list. One-hundred-person conference calls hardly seem conducive to careful deliberation. Individual officials can—and do—veto inclusion on the list if they are unsatisfied with the quality of the intelligence or with whether the substantive standards have been met. Klaidman tells stories of Obama, Brennan, Koh, and Jeh Johnson, general counsel of the Department of Defense, all vetoing strikes. But Koh admits that halting a proposed targeted killing is “like pulling a lever to stop a massive freight train barreling down the tracks.”
Klaidman reports that Koh spent five hours in a secure facility reviewing the evidence about Anwar al-Awlaki before agreeing that he could be killed. But however one much respects Koh, a former dean of Yale Law School and human rights advocate, is that enough? Should we be satisfied with a wholly executive process that involves no adversarial testing? We take years to decide whether to put an American citizen to death in our criminal justice system, insisting upon multiple layers of interbranch review. When we are meting out death far from any battlefield, and with time to spare, should not someone in the executive branch be assigned to advocate for the target in order to limit the risk of groupthink? We require the police to get a warrant from a judge before they can search a man’s backpack; if there is time, should not, as a New York Times editorial recently suggested, some level of judicial review—perhaps by a specially constituted court—be required before we take a man’s life? Koh, Brennan, and Obama may well deserve our trust, but that’s not enough; the process needs to be one that would be seen as legitimate even if the decision-makers were John Yoo, David Addington, and George W. Bush.
These and other questions remain largely unanswered because so much of the program remains under wraps. That is unacceptable and unwise. In the end, the legitimacy of the program requires transparency—not about individual targets ahead of time, but surely with respect to general legal standards and procedures. As Michael Hayden, former director of central intelligence, told The New York Times, “This program rests on the personal legitimacy of the president, and that’s not sustainable…. I have lived the life of someone taking action on the basis of secret OLC memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a DOJ safe.” These days, our democracy too often does.
5.
President Obama is not the same as President Bush, and has not institutionalized the worst of Bush’s policies. By this time in President Bush’s first term, there were widespread and credible reports of systematic torture and inhumane treatment of detainees, renditions to torture, indiscriminate roundups of Arabs and Muslims within the United States having nothing to do with terrorism, the announcement that the Geneva Conventions would not bind us, and the creation of a military commission system that would permit executions based on coerced confessions and without judicial review. By contrast, few abuses have been reported during President Obama’s first term. Obama’s opposition to any efforts at accountability for the past, even an independent commission, remains deeply disturbing, as do his insufficient efforts at transparency. Not a single high official has been held legally responsible for a violation of the law barring torture, for example. But surely we are better off under an administration that has ended torture, closed the black sites, sought to reform military commissions, and insisted that all its actions must conform to the laws of war in particular and to the rule of law more generally.
Klaidman reports that President Obama told his staff at one meeting that
one of the things for which I am proudest of this administration is that we haven’t demagogued these issues….We haven’t been playing to people’s fears and we haven’t been playing politics with terrorism. We’ve been careful about how we talk to the American people about these risks.
That’s fair, but it’s only half the story. While President Obama, unlike his predecessor, has steered clear of the politics of fear, he has also steered clear of the politics of defending our ideals. Like many Democrats, he seems afraid of being painted as soft on terrorism if he advocates for respecting the rights of others. We can only hope that in a second term, with more confidence and an eye on his legacy rather than short-term polls, he will take on the defense of American ideals that he let pressure from the security bureaucracy and political caution stop him from pursuing in the first.
